A federal judge has shot down Alaska’s bid to expand subsistence fishing beyond boundaries set by the federal government, affirming the federal authority over the state’s management of its waters.
In a March 29 ruling, U.S. District Court Judge Sharon Gleason permanently blocked Alaska from issuing orders that would contradict federal management decisions aimed at preserving fish for a small group of rural residents.
The dispute, centered around the question of who has the authority to manage fish and wildlife resources in Alaska, was raised in 2021, when Chinook salmon runs on the Kuskokwim River hit record lows.
Citing shrinking populations of salmon, the Federal Subsistence Board and other federal officials imposed a fishing ban on 180 miles of the Kuskokwim, where it flows through the Yukon Kuskokwim Delta National Wildlife Refuge.
Under the federal order, that section of river was closed to non-subsistence harvest and opened only to “federally qualified” subsistence fishermen who lived in rural villages. This order effectively denied access to the fisheries for many Alaska Natives from the Kuskokwim region, who have ditched rural life to seek economic opportunities in urban areas. About two-thirds percent of Alaska Natives reside in the state’s urban cities.
The federal orders conflicted with those issued by the Alaska Department of Fish and Game, which periodically opened the Kuskokwim for subsistence fishing by not only a few subsistence fishermen but all state residents.
After similar conflicts the following year, the Biden administration in 2022 sued Alaska under the Alaska National Interest Lands Conservation Act, or ANILCA. The 1980 law requires that rural residents’ harvests of fish and game must be prioritized during times of scarcity.
This priority has since been further validated by three court rulings collectively known as the Katie John cases. Those rulings allowed the federal government to take over management of fisheries in rivers above state-owned riverbeds to enforce the rural subsistence preference under ANILCA.
The state, however, pointed to a U.S. Supreme Court ruling in 2019, when the justices ruled in favor of John Sturgeon, an Alaska hunter who was operating his hovercraft on a river within a federal wildlife preserve, where those vehicles were banned by the National Park Service. In the Sturgeon case, the high court affirmed that “navigable waters” are state-owned and exempt under ANILCA.
“The Kuskokwim River is a navigable waterway,” the Alaska Department of Law said in a statement. “The federal government has disclaimed any interest in the submerged lands beneath the sections of river at issue in this case. Thus, the river is not public land under ANILCA.”
In her 29-page decision, Judge Gleason rejected the state’s argument. The Supreme Court, she said, “expressly stated” that its ruling in Sturgeon does not disturb the Katie John precedents.
“The Court therefore is bound by the Katie John trilogy of cases to find that [ANILCA’s] rural subsistence priority applies to navigable waters in which the United States has reserved water rights,” she wrote, declaring that the Biden administration has “lawfully designated the Kuskokwim River in the Refuge as a navigable water subject to [ANILCA].”
In 2022, Judge Gleason issued a temporary injunction in 2022 blocking Alaska from issuing conflicting orders. Her latest ruling made it permanent.
Alaska AG: Feds Sue State For Managing Its Own River
In a statement following the ruling, Alaska Attorney General Treg Taylor said he was disappointed that the federal court failed to “recognize the clear conflict between the U.S. Supreme Court decision in the Sturgeon case and the federal actions here.”“We were always expecting this case to go up to the highest court in order to get a final decision,” Mr. Taylor said. “The state plans to appeal.”
In an op-ed published last September, Mr. Taylor denounced the Biden administration’s “repeated attempts to seize control of the Kuskokwim River and take charge of the fish within,” arguing that the state has the right to manage its own natural resources for the benefits of all of its residents.
“The federal move seeks to make it a crime for most Alaskans to fish on the Kuskokwim,” he wrote, noting that urban Alaska Natives are no longer allowed to come back to the Kuskokwim region and help their families in their cultural subsistence needs.
“Federal management also comes at a cost to Alaska families who live upstream of the Yukon Delta National Wildlife Refuge,” Mr. Taylor added, accusing the state of preventing sufficient fish from reaching these families, despite the state’s attempts to close the fishery on certain days to allow enough fish to get upstream.
“In short, federal management picks a small group of winners in a small geographic area at the expense of all others and at the risk of future returns,” he wrote.
